If your loved one with a power of attorney died with a will or trust that does not seem to reflect their true final intentions, you may be wondering: Did the power of attorney change the will or trust before death? Can a power of attorney change a will or trust?
You are not wrong to be asking this question. If your loved one signed a power of attorney authorizing someone to act on their behalf in financial and legal matters, it’s possible the person they designated, called the attorney-in-fact or agent, had full access to their financial and legal documents, and could have tried to change your loved one’s will or trust.
Suppose your parent signed a power of attorney document designating your sibling as their agent. As your parent’s agent, your sibling was able to access your parent’s safe, where they happened to be keeping their will along with other important documents. A few years later, after your parent dies and you receive a copy of their will, you learn that your sibling who was acting as your parent’s agent is receiving a disproportionate share of your parent’s estate.
This was a shocking revelation for you because your parent had always talked about leaving you and your siblings equal inheritances. Consequently, you’re wondering whether your sibling could have changed your parent’s will. If so, was this a right your sibling had as your parent’s attorney-in-fact, or was your sibling abusing their power of attorney?
While a power of attorney (POA), signed by someone called the principal, can be used for a wide range of purposes — everything from empowering a business partner to enter into contracts on your behalf to allowing another adult to have custody of and make decisions for your minor children while you’re out of town — it’s most commonly used as a precautionary measure, as it can authorize another person to act on your behalf should you become incapacitated, or lose mental competence, during your lifetime.
The three main types of power of attorney include:
- General power of attorney (aka financial power of attorney): Grants the agent broad authority to make financial and/or legal decisions on behalf of the principal
- Health care power of attorney (aka medical power of attorney): Grants the agent the authority to make medical decisions on behalf of the principal
- Limited power of attorney (aka specific power of attorney): Grants the agent narrow authority to make certain specific decisions on behalf of the principal
For the purposes of this article, we will solely be focusing on general powers of attorney.
Under What Circumstances Can the Power of Attorney Change the Will?
If you understand what a general power of attorney entails, then you know that the authority it grants is far-reaching. But can someone with power of attorney change a will?
An agent with power of attorney does not have the authority to change, revoke or write a will on their principal’s behalf, even if the principal provided them with the explicit authority to do so. A will that has been written or altered by an agent is invalid. In the same vein, if an agent revokes a will, that revocation generally would not hold up in court.
In reference to the question of whether a power of attorney can change their principal’s will, California Probate Code section 4265 states:
“A power of attorney may not authorize an attorney-in-fact to make, publish, declare, amend, or revoke the principal’s will.”
That said, there is a way for an agent to influence a principal’s estate without their having any involvement with the principal’s will. Keep on reading to find out how an agent may be able to override a principal’s will.
Does a Power of Attorney Override a Will?
It’s unlawful for an agent to directly override their principal’s will, but they could indirectly override it by moving around and/or restructuring the principal’s assets while the principal is still alive. For example, an agent (given they have the authority to do so) could sell some of the principal’s real properties. If the principal had included these real properties in their will, the agent selling these properties could alter the disposition of assets called for in the principal’s will.
An attorney-in-fact could also use their authority to divert the principal’s assets from their estate while they are still living. For example, the attorney-in-fact could potentially use their authority to transfer assets to third parties, or gift property to themselves, friends and family during the principal’s life.
Many agents falsely believe they can create, change or revoke a will on behalf of a principal if the principal is incapacitated, but if they were to do this, they could be held liable for power of attorney abuse. When a principal lacks the testamentary capacity to create or change their will, there generally is nothing their agent can do about it, save for moving around and/or restructuring their assets.
That said, it’s important to remember that an agent has a fiduciary duty to act solely in the principal’s best interests. If they are unable to justify why they moved around or restructured the principal’s assets, or if their actions benefited themselves or someone else as opposed to the principal, this would be considered a misuse of their power of attorney.
If you believe an agent has misused the power of attorney, it is crucial to get in touch with a power of attorney lawyer, who could help put an end to the financial abuse and recover any assets that were lost to it and possibly even damages. A power of attorney lawyer can help even in instances where the financial abuse isn’t discovered until after the principal’s death.
Can a Power of Attorney Change Beneficiaries?
A power of attorney cannot directly change the beneficiaries of an estate, since a will that has been created or changed by an agent is considered invalid. However, as previously discussed, an agent could indirectly change the beneficiaries of an estate by moving around and/or restructuring the principal’s assets.
An agent’s ability to move around and/or restructure assets should not be taken lightly, as it could have sweeping effects.
Suppose the agent’s archnemesis is a beneficiary of their principal’s estate. The principal’s will provides for this beneficiary to inherit expensive artwork the principal owned. The agent could sell the artwork and deposit the proceeds from the sale into the principal’s bank account. If the principal’s bank account were designated to pass to another beneficiary, the agent’s actions would have the effect of disinheriting the beneficiary they don’t like.
Can a Power of Attorney Change the Executor of a Will?
A power of attorney does not have the authority to change the executor of a will. If an agent were to change the executor of a will, the portion of the will nominating the executor would be considered invalid.
This would hold true even if the agent were changing the executor for a practical reason. For example, if a principal is incapacitated and the executor they nominated dies before they do, the agent may believe nominating someone else to serve in the deceased executor’s place would be a logical next step. However, it is not a power they have.
If an executor nominee were to die or become incapacitated before the will creator dies, then either an alternate executor named in the will would be appointed to serve as executor or someone of the court’s choosing.
Can a Power of Attorney Change a Will After Death?
Under no circumstances can a principal’s will be changed after the principal’s death. Furthermore, because a power of attorney expires upon the principal’s death, there would be no lawful way for an agent to change their principal’s will after their death in any event.
Not only would any changes an agent makes to a principal’s will after their death be considered invalid, but the agent could be sued by the principal’s estate or loved ones for making these changes.
Can a Power of Attorney Sign a Will?
There are no circumstances under which a power of attorney has the authority to sign their principal’s will.
Signing a will is equivalent to executing a will, or putting a will into effect. Only the creator of a will, called the testator, can execute a will, and they must follow the proper protocol when doing so.
In California, to execute a valid will, protocol requires for there to be at least two competent witnesses present to sign the will at the same time as the testator. The witnesses must be disinterested. In other words, they should not have a financial stake in the testator’s estate.
While an agent could not sign a principal’s will on their behalf, they could potentially act as a witness to the signing of a will if they have no financial stake in the principal’s estate.
That said, if the principal is mentally incompetent, they would not be able to execute a valid will, even if they had drafted a will at a time when they’d been competent, nor would their agent be able to sign their will on their behalf. In such an instance, the principal’s estate generally would need to be distributed according to the laws of intestate succession.
If the aforementioned scenario of a principal becoming incapacitated before they had the opportunity to sign their will were to occur, there may be a way for their agent to circumvent the possibility of their principal’s estate becoming subject to intestate succession laws.
For example, if the principal had executed a trust when they’d been competent, their agent may be able to transfer their assets into their trust so they would be distributed according to the terms of the trust rather than intestate succession laws.
However, in most cases, for an agent to make legal transfers of money or property into their principal’s trust, they would need to have the explicit authority to do so. In other words, the power of attorney and trust documents should both specify that this is a right they have.
Under What Circumstances Can a Power of Attorney Change a Trust?
While both wills and trusts are estate planning documents that can be used to direct the disposition of a decedent’s assets, trusts are very different from wills, and as a result, have distinct laws governing them. For example, while agents with power of attorney do not have the legal right to change their principal’s will, they may have the legal right to change their principal’s trust.
That said, it is crucial for agents to thoroughly review both the terms of their power of attorney and the terms of the principal’s trust with a probate attorney before enacting any changes to the principal’s trust. Only if both documents expressly grant the agent the authority to make the modifications they are proposing will they be able to proceed with making the modifications.
In reference to the question of whether a power of attorney can change their principal’s trust, California Probate Code section 4264(a) states that, if a power of attorney expressly grants such authority to an agent, the agent can:
“Create, modify, revoke, or terminate a trust, in whole or in part. If a power of attorney under this division empowers the attorney-in-fact to modify or revoke a trust created by the principal, the trust may be modified or revoked by the attorney-in-fact only as provided in the trust instrument.”
Suppose a power of attorney expressly grants the agent the authority to change, revoke or terminate their principal’s trust, but the terms of the trust only grant the agent the authority to revoke the trust if no assets remain in the trust. In this case, the agent would not be able to terminate the trust until the aforementioned condition is met, regardless of the terms of the power of attorney.
If an agent does have the right to change, revoke or terminate a principal’s trust, they may be able to utilize their powers to indirectly effect changes to their principal’s estate. For example, the agent could transfer properties that were supposed to be distributed as part of the principal’s estate into the principal’s trust so they can be distributed to the trust beneficiaries instead of the estate beneficiaries.
In such cases, the agent should be prepared to provide justification for their actions, as beneficiaries of the principal’s estate could try to sue (e.g., by using an 850 petition) to try to have the assets returned to the estate after the principal’s death.
Can a Power of Attorney Change a Revocable Trust?
The same rules described above would apply when determining whether a power of attorney has the right to change a revocable trust. In other words, if the power of attorney and trust instruments both expressly grant the agent the authority to make the modifications they are proposing to the principal’s trust, they generally would be able to move forward with making the modifications.
If a trust is revocable, it simply means that the document can be altered or revoked by the trust creator, called the settlor, grantor or trustor, while they retain capacity and are still alive. If the settlor loses capacity during their lifetime, their agent may be able to alter, revoke or terminate their trust on their behalf, but again, they would not be able to effect these changes unless both the power of attorney and trust instrument explicitly provide them with this right.
Can a Durable Power of Attorney Change a Revocable Trust?
A durable power of attorney simply means that the POA document takes effect upon signing and remains in effect until the principal’s death or until the POA is revoked. The same rules discussed above apply to durable powers of attorney.
If an agent with durable power of attorney has expressly been granted the authority to alter, revoke or terminate a trust in both the power of attorney and trust instruments, they would be able to move forward with their proposed modifications.
Can a Power of Attorney Change an Irrevocable Trust?
An agent with power of attorney may be able to change an irrevocable trust if they have been granted the express authority to do so by both the power of attorney and trust instruments.
To effect changes to an irrevocable trust, the agent likely will need to obtain the written consent of all the trust’s beneficiaries or a court order, as irrevocable trusts don’t allow the settlor to alter, revoke or terminate their trust unless one of the two aforementioned conditions are met.
How to Handle a Power of Attorney Wrongfully Changing a Will or Trust
There are no circumstances under which an agent with power of attorney could legally change their principal’s will. Therefore, if it comes to light that an agent has changed their principal’s will, it’s crucial legal action be taken to either void the power of attorney and/or contest the will.
While an agent may legally be able to change the principal’s trust, they must follow all the conditions set forth in the power of attorney and trust instruments to execute the changes they are proposing. They also must ensure both instruments expressly grant them the authority to change the principal’s trust. One document alone will not suffice.
If an agent plans to change a principal’s trust, they must also ensure the changes they are proposing are for the benefit of the principal and their beneficiaries. They cannot make changes to the principal’s trust to benefit only themselves or to favor certain beneficiaries over others.
Many people designate a close family member or friend as their agent. On the surface, designating a close family member or friend would seem like the logical choice, as these are people who generally can be trusted. However, if the agent is also a beneficiary of the principal’s estate or trust, there may be risks involved in designating them.
It’s possible an agent will have access to the principal’s will or trust. If they’re named as a beneficiary in their principal’s will or trust, they could be motivated to try to change the will or trust to provide themselves with a greater inheritance than what they’re receiving currently. Since they’re close with the testator/settlor, this wouldn’t necessarily set off alarm bells. This is why it’s important to be extra-vigilant if a loved one has granted power of attorney to someone who is inheriting from their estate or trust.
After a principal dies, it’s a good idea to have an experienced probate lawyer review their will or trust to look for any abnormalities or red flags. For example, if the principal’s agent was their sibling, and their will provides for this sibling to receive the lion’s share of their estate even though they had children and other siblings, there may be something wrong. A probate lawyer would be able to spot this red flag, investigate it further and take the appropriate legal action.
A probate lawyer could also help with looking into other forms of power of attorney misconduct. For instance, if an agent moved around or restructured their principal’s assets in a way that didn’t benefit the principal but rather benefited them or people close to them, the agent could be held liable for abusing their power of attorney.
Learn what steps to take when an agent with power of attorney wrongfully changes a will or trust from the following subsections.
Immediately Contact a Fiduciary Misconduct Lawyer
As previously mentioned, an agent with power of attorney cannot legally change their principal’s will. If they were to change it, it would be considered fiduciary misconduct. While an agent may be able to legally change a principal’s trust, they must follow the proper protocols when doing so, and any changes they make should be in the principal’s best interests.
If you suspect that a principal’s will has been changed by their agent, it’s crucial to immediately get in touch with a fiduciary misconduct lawyer. Such a will could be denied admission into probate after the principal’s death or be contested, but to do either of these things, swift legal action must be taken, as there are strict deadlines for contesting a will. A trust also could be contested if it turns out that an agent unlawfully changed their principal’s trust or made changes that weren’t in the best interest of the principal.
If it comes to light that a principal’s will or trust has been changed by their agent, and the principal is of sound mind and alive, they can simply undo the changes to their will or trust and revoke the power of attorney to strip their agent of any control they have over their finances and legal matters.
If a principal’s will or trust has been wrongfully changed by their agent and the principal is incapacitated, their loved ones could potentially file a petition to have the power of attorney voided. The principal’s loved ones could also petition for the appointment of a conservator of the principal’s estate. If appointed, they could file a petition known as a petition for substituted judgment to modify the principal’s estate plan before they die. In the alternative, the principal’s loved ones could wait until the principal has died to take legal action to try to have the altered portions of the will invalidated.
Gather Evidence
As with most legal matters, evidence will need to be provided to the court to prove that an agent with power of attorney made changes to the principal’s will, thereby overstepping their authority. Evidence will also need to be provided to prove that an agent made wrongful changes to a principal’s trust.
If you are working with a lawyer, they likely will be able to handle this step for you. They will know what type of evidence to gather, and can build a compelling case using it.
While the will or trust itself could serve as evidence, your lawyer may also use other types of evidence, such as testimony from witnesses and financial documents. Be sure to share any documents or information you have to support your power of attorney abuse claim with your lawyer.
File the Appropriate Petitions With the Court
Once you or your lawyer has built a compelling case, a petition will need to be filed with the court. The type of petition you file will depend on the legal remedy you are seeking.
For example, if you believe your loved one’s agent changed their will, you could file a will contest and objection to try to have their will denied admission into probate after their death. However, to do this, you would need to have standing. If you’re successful in having the will denied admission into probate, it’s possible the prior version of your loved one’s will be submitted for probate instead.
If you missed the opportunity to object to the will’s admission to probate, you can still file a petition to revoke probate of the will after the will’s admission into probate by arguing that the will was invalid. However, there are strict time limits within which you can file such a contest. Working with a lawyer will boost your chances of successfully contesting a will.
If the principal is alive but incapacitated, and you can prove their agent acted in ways that weren’t in their best interest, e.g., by changing their will or moving around their assets in such a way that disinherited their primary beneficiaries, you could file a petition with help from your lawyer to try to have the power of attorney voided, which could help stop further misconduct and possibly even reverse the damage caused by the agent. As part of such a petition, you can also ask the court to order the attorney-in-fact to account for all their actions as attorney-in-fact.
We know this is a lot of information to absorb. Luckily, our team of probate lawyers is highly skilled at handling fiduciary misconduct cases and know exactly what actions to take to undo the damage caused by agents who overstep or abuse their authority. If you’re unsure which legal remedy to seek, our lawyers can review your case and present you with options.
Power of Attorney FAQs
While a power of attorney can be an extremely helpful document, it can also cause a lot of damage if it’s misused. Understanding the rights and limitations of a power of attorney can go a long way in preventing power of attorney abuse.
While an agent changing a will is one way a power of attorney can be abused, there are countless other ways it can be abused as well. This section will help you understand what power of attorney abuse is and what you can do about it.
Remember that you can always reach out to us for a free consultation if your questions weren’t answered in this article.
Can a Power of Attorney Change Ownership of Property?
A power of attorney could potentially change the ownership of a principal’s property if the POA document or the principal (given they are mentally competent) explicitly authorizes them to do so. The agent would, however, need to follow the proper procedures when changing the ownership of property. For example, they would have to execute a deed to transfer ownership of real property.
If an agent changes the ownership of property without being explicitly authorized to do so, their action could result in a power of attorney abuse claim being brought against them.
That said, agents with general power of attorney usually do have broad authority when it comes to managing a principal’s properties. For example, they may be able to collect rent on behalf of the principal, enter into contracts on behalf of the principal, and make repairs to their properties.
Can a Power of Attorney Transfer Money to Themselves?
A power of attorney generally does not authorize an agent to transfer money to themselves for personal use, as this would be considered self-dealing, which is a form of power of attorney abuse.
However, if a competent principal expressly grants their agent permission to transfer money to themselves or the agent has a valid reason for doing so, it may be acceptable for them to complete the transfer.
In general, everything an agent with power of attorney does must be for the benefit of the principal. If someone else benefits from the agent’s actions more than the principal, it means that the agent most likely abused their authority.
Who Can Override a Power of Attorney?
In general, only a principal can override a power of attorney, but they must be mentally competent to do so. If a competent principal is dissatisfied with their agent’s actions, they simply can revoke the power of attorney to strip their agent of any authority they have.
In rare cases, if a loved one of an incapacitated principal notices that their agent is harming the principal or their finances, they may be able to file a petition with the court seeking for the POA to be voided. They, however, should be prepared to tell the court how they plan to protect the principal should the court grant their petition. For example, someone could volunteer to become the principal’s conservator. In cases in which a conservator is appointed, the conservator will typically have control over the principal’s assets and can override a power of attorney.
What Are My Power of Attorney Obligations to Family Members?
Your power of attorney obligations to family members will depend on the terms of your power of attorney. If you are having a hard time interpreting the terms of the power of attorney document, a power of attorney lawyer can always be consulted.
That said, your primary obligation, no matter the type of power of attorney you have, is to look out for the best interests of your principal. Never do anything that would benefit you or someone else over the principal, as that could make you liable to a fiduciary misconduct claim.
If you have a general power of attorney, you would be responsible for overseeing your principal’s finances and legal matters. For example, you may need to make mortgage payments on their behalf, invest assets on their behalf, collect their salary and so forth. But be sure to thoroughly understand the terms of the POA, as there may be some limitations you should be mindful of.
If you have a health care power of attorney, you would be responsible for overseeing your principal’s medical needs. For example, you may need to consent to medical procedures on their behalf, arrange their doctor appointments, manage their medications and so forth.
What Is the Difference Between a Power of Attorney and Conservatorship?
While powers of attorney and conservatorship can both be used to help an incompetent adult manage their personal and financial affairs, there are key differences between powers of attorney and conservatorship.
A power of attorney is a document that must be signed by a competent adult. It can grant another adult the authority to manage their health care needs or financial and legal matters. It also can prevent the adult from requiring conservatorship in the event they become incapacitated during their lifetime.
Conservatorship is a court proceeding during which a responsible adult is appointed to oversee the personal or financial affairs of an adult who has become incapacitated. This type of arrangement generally is much more restrictive than a power of attorney and requires court intervention.
Did a power of attorney change a will? We can help.
If a power of attorney changed a will, you should be concerned. This is not a right attorneys-in-fact have.
While the hope is always that the person designated as a loved one’s POA will do the right things, this often is not the case.
If you believe a POA has abused their authority in any way, it is crucial you speak to a lawyer about what you can do to reverse the damage caused by their abuse. Our team of probate lawyers is standing by to answer your questions. Call us to request a free consultation.
Elder Financial Abuse Stopped in Its Tracks
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